In re DARIN PALERMO on Habeas Corpus.









Filed 2/11/09; pub order 3/6/09 (see end of opn.)






IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----

In re DARIN PALERMO on Habeas Corpus.

C058030 (Super. Ct. No. SC040338A)

In June 1987, when he was 21 years old, Darin Palermo (defendant) fatally shot his former girlfriend, Andrea Naftel (the victim), while she was sitting on the toilet in the bathroom of defendant’s apartment.
According to defendant’s version of the incident, he and the victim had planned to go target shooting together. Believing that he had emptied the bullets from his revolver, defendant foolishly began to play “cowboy” and dry-fired the weapon twice as he walked down the hallway toward the bathroom. He then stood in the open doorway to the bathroom, took aim, and fired the weapon, fatally shooting the victim. Stunned because he thought that the gun was unloaded, he called his sister and 9-1-1, and gave the victim mouth-to-mouth resuscitation until emergency assistance arrived. He believed that he committed manslaughter because he did not intend to kill the victim.
The People presented a different scenario. After dating and living with defendant, the victim moved out of defendant’s apartment. There appeared to be some tension between them after defendant began dating another woman and the victim would enter the apartment without defendant’s knowledge or consent while his new girlfriend was there. Defendant was experienced with firearms and knew better than to point even an unloaded weapon at someone. The victim was in a defensive position when she was shot. A boy passing outside heard a woman scream before a shot was fired. Defendant initially lied and said that the victim had shot herself. He hid the expended bullet casing after the shooting. When the weapon was unloaded properly, all of the bullets typically fell out of it making it unlikely--although not impossible--that one of the bullets would have accidentally remained in the gun as defendant claimed.
Jurors rejected defendant’s claim of manslaughter and convicted him of second degree murder. He was sentenced to an indeterminate term of 15 years to life in state prison.
At defendant’s third parole hearing in March 2006, the Board of Parole Hearings (the Board) found defendant was not suitable for parole due to the nature of the commitment offense, defendant’s disciplinary history, and his lack of insight into his behavior that resulted in the victim’s death.
Defendant contends there is no evidence he poses a current danger to the public safety; thus, the Board abused its discretion by failing to set a parole release date. We agree and shall grant defendant’s petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was born profoundly deaf and has only minimal hearing in one ear. He is able to read lips and, after receiving years of speech therapy, he is able to communicate fairly well but has a fourth grade reading level.
Defendant and the victim, who was also hearing-impaired, had known each other since childhood. They dated and then lived together, but defendant asked the victim to move out when she was unable to help pay the bills. They remained friends after she moved from the apartment in March 1987.
A week after the victim moved out of the apartment, defendant began dating Laura Smith. According to Smith, defendant was not pleased when the victim would let herself into the apartment without his knowledge and consent, and the victim displayed some hostility toward Smith. Smith testified that defendant owned a handgun, and the two had gone target shooting with the weapon. Defendant always used appropriate gun safety and had warned her never to point the weapon at anyone.
Two days before the shooting, Smith spent the night with defendant before leaving town for the weekend. The following night, the victim stayed with defendant; and the next day they went to the home of defendant’s sister, Tallie Pittman. Pittman and other witnesses said that the victim and defendant appeared to be on good terms. They returned to his apartment to decide what else to do that day.
According to defendant, while the victim went to the bathroom, defendant decided they should go target shooting. He got his revolver and emptied the bullets onto the bed as a precaution prior to transporting it to the target range. He did not count how many bullets had fallen out of the gun. He then walked toward the bathroom and dry-fired the weapon twice without incident. Through the open bathroom door, he saw the victim sitting on the toilet reading a magazine. Defendant began playing “cowboy” with the gun, and the victim laughed. Believing the weapon was not loaded, defendant pointed the gun at her, pulled the trigger, and shot her. The victim got up from the toilet and walked several steps toward defendant, who pulled her into the hall and placed her on the floor. The bullet had pierced the victim’s forearm, and a bullet fragment had penetrated her chest.
Defendant did not know what to do so he called his sister, Pittman, telling her the victim had shot herself. Pittman advised defendant to call 9-1-1. Before emergency assistance arrived, he pulled up the victim’s pants and tried to give her mouth-to-mouth resuscitation.
When the police arrived, defendant said the victim had shot herself. While one of the officers was standing by the patrol car, a boy approached and stated he heard a woman scream and then two shots. A neighbor who lived across the street also heard gunfire but did not hear any screams.
Defendant testified that because he was afraid of what might happen, he lied to his sister and to the police about the victim shooting herself, and he unloaded the one shell that had been in the gun, put it in his pocket, and left the shell in the police car.
Both the prosecution and the defense introduced extensive blood spatter evidence. The prosecution attempted to show that the victim was kneeling on the floor in a defensive position at the time of the shooting. The defense attempted to show that, although the victim’s arm was raised in front of her at the time of the shooting, she remained on the toilet. The defense expert testified the prosecution expert’s methodology was significantly flawed.
Michael Giusto, a criminalist for the Department of Justice, explained that defendant’s gun holds six cartridges and that, if the cylinder is fully open, the unexpended cartridges will simply fall out. A person need only look in the cylinder to see if any cartridges remain. When the prosecutor asked defendant to demonstrate how he unloaded the weapon, all of the bullets fell out. However, using defendant’s handgun, the defense firearms expert showed that it was possible to leave one round in the cylinder when unloading the weapon if the cylinder was not fully open, and that the cylinder might not open completely if the gun was tilted. Using a blank shell, the expert demonstrated that a bullet left in the cylinder in this manner would be fired by the third pull of the trigger.
Defendant acknowledged he knew better than to point a gun at another person, but explained he had begun to exhibit bad judgment after he was in an accident in which he totaled his truck and hit his head. For example, he had a job at a sign shop and his employer, Tony Guebara, had given him a raise in May 1987 for good job performance; but Guebara fired defendant later that month, about a week before the shooting, because defendant’s job performance declined drastically after the truck accident. Guebara thought defendant’s memory was much worse after the accident.
A professor of neuropsychology opined that when defendant hit his head, he suffered a temporary decline in mental functioning. This caused defendant to exhibit impulsive behavior and poor judgment, such as that demonstrated by his uncharacteristically negligent conduct with the gun when he shot the victim. The prosecution presented evidence countering this theory.
Rejecting defendant’s theory of manslaughter, the jury convicted him of second degree murder.
The probation report prepared for the sentencing hearing revealed that defendant has no prior criminal convictions or juvenile adjudications. He insisted he thought the gun was unloaded, he never meant to kill the victim, and he was shocked that he was convicted of murder rather than manslaughter. Defendant’s parents believed he was convicted of murder because of his limited language skills and inability to “‘communicate grief’ regarding the shooting of [the victim].” In contrast, the victim’s parents were adamant that defendant murdered their daughter because he was depressed about totaling his truck, losing his job, and the victim’s refusal to move back in with him. Defendant expressed remorse for the victim’s death and her parents’ suffering.
The probation officer opined that defendant’s efforts to lie and hide the shell casing were the actions of a frightened young man with “profound physical and intellectual limitations” and that, although defendant knew better than to point a weapon at anyone, let alone pull the trigger, such accidental shootings happen even among experienced professionals.
Psychological evaluations and reports during his incarceration indicated that defendant has been consistently remorseful for what he insists was an unintentional shooting, he has never engaged in any violent behavior in prison, he has obtained job skills, and he has “been programming well during the course of his incarceration.” For example, a psychological report to the Board of Prison Terms prepared in 1997 noted the following: Defendant expressed a great deal of remorse for the offense, stating, “It really shocked me.” He was very sorry for the victim’s family, whom he had known since he was a small boy. He could never forget what occurred and asked his father to sell all of his guns.
The life-term inmate mental health evaluation prepared in 2002 stated that, because of his profound deafness, defendant attempted to secure tutorial assistance in prison but was not as successful as he had hoped. Nevertheless, he had “programmed in excellent fashion while in prison”--receiving “a number of laudatory chronos,” a certificate of apprenticeship, and a certificate for upholstery repair, and completing the “Total Quality Management Program” and “The Road to Freedom program.” In the view of the psychologists who prepared the report, defendant’s potential for violence was “low/average for the general male population in the open community.” He had job prospects and family support, and was “a very favorable prospect for return to the community where it is predicted he will adjust well and do well for himself and others.” The psychologists noted that defendant still thought about the victim, was remorseful for her suffering and demise, and acknowledged he deserved to be punished for causing her death; but he believed a conviction for manslaughter was “more appropriate” because “[h]e never meant to kill her.”
His most recent life-term inmate mental health evaluation, prepared in 2005, stated that defendant worked as a clerk in Plant Operations and received “above average to outstanding work reports” and a “[l]audatory work chrono in March 2003”; he completed a college course, took classes on “Women’s Perspectives,” “Advanced Biblical Applications,” and ceramics; and he completed a coping skills group and four individual psychotherapy sessions, after which treatment was discontinued because the psychologist did not think any further treatment was necessary.
According to the evaluation, defendant expressed “a great deal of sorrow and remorse for the victim’s family,” apologized again for his actions, “explored the [commitment] offense in a number of different ways in both individual and group psychotherapy when it was available to him,” continued “to program actively,” and took “full responsibility for this crime” while asserting that “it was an accidental shooting and [he] never in any way meant to harm the victim.” If paroled, defendant planned on living with his “very supportive family.” He had two job offers and “several job skills.” The psychologists who prepared the evaluation opined that defendant presented “a lower risk to the community if granted a release as compared to the average citizen in the free society.”
Defendant’s prison misconduct is limited. In February 2003, he received a Form “115” reduced to a Form “128-A Counseling Chrono” for misusing a state copy machine to make unauthorized copies.”^[1] In August 2002, he received a Form 115 for theft of state property (a fan from an office machine was found in his cell; according to defendant, he was standing in his cell doorway when an inmate handed him a bag to give to his cellmate, defendant did not know the fan was in the bag, and his cellmate confessed that the stolen fan belonged to him, not to defendant). In 1994, he received a Form 115, later reduced to a “Division F,” for participating in a work strike (“which virtually all inmates at [Deuel Vocational Institution] received if they were working at that time”. Defendant had “never received any [d]isciplinary or [c]ounseling [r]eports for any kind of violence while incarcerated.”
At defendant’s third parole hearing in March 2006, the Board found that he was not suitable for parole due to the nature of the commitment offense and his disciplinary history. And stating “I’m not entirely sure how much insight you have into your own behavior,” a member of the Board “encourage[d] [defendant] to continue to work in the area of self-help to continue to build insight.”
Finding that some evidence supported the Board’s decision, the San Joaquin County Superior Court denied defendant’s petition for writ of habeas corpus.
Defendant then filed a petition for writ of habeas corpus in this court, which ordered the superior court to reconsider the petition in light of In re Lee (2006) 143 Cal.App.4th 1400 (hereafter Lee).
The superior court denied the petition again, concluding that Lee contravened the California Supreme Court’s decisions in In re Rosenkrantz (2002) 29 Cal.4th 616 (hereafter Rosenkrantz) and In re Dannenberg (2005) 34 Cal.4th 1061 (hereafter Dannenberg).
Defendant filed another petition for writ of habeas corpus in this court, and we issued an order to show cause. Thereafter, the California Supreme Court decided In re Lawrence (2008) 44 Cal.4th 1181 (hereafter Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (hereafter Shaputis), clarifying its decisions in Rosenkrantz and Dannenberg and the limits on the Board’s broad discretion to deny parole. We then asked the parties to submit supplemental briefs addressing those decisions. They have done so and, as we will explain, we are persuaded that the Board abused its discretion in denying defendant a parole release date.
DISCUSSION
I
The following legal principles guide our review of the Board’s decision:
One year prior to the minimum eligible parole release date of an inmate sentenced to an indeterminate prison term, the Board must “normally set a parole release date . . . in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public . . . .” (Pen. Code, § 3041, subd. (a).) The Board “shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.” (Pen. Code, § 3041, subd. (b).)
The Board is required to “establish criteria for the setting of parole release dates.” (Pen. Code, § 3041, subd. (a).) A panel of the Board must determine whether the life prisoner is suitable for release on parole, and “[r]egardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.” (Cal. Code Regs., tit. 15, § 2402, subd. (a); further section references are to title 15 of the California Code of Regulations unless otherwise specified.)
The Board’s regulations set forth nine factors tending to show suitability for release on parole: (1) the absence of a juvenile record; (2) a history of reasonably stable social relationships with others; (3) tangible signs of remorse; (4) the commission of the crime resulted from significant stress, especially if the stress had built over a long period of time; (5) battered woman syndrome; (6) a lack of a history of violent crime; (7) increased age, which reduces the probability of recidivism; (8) marketable skills and reasonable plans for the future; and (9) responsible institutional behavior. (§ 2402, subd. (d).)
Factors tending to demonstrate unsuitability for release on parole include the inmate’s (1) commission of the offense in an especially heinous, atrocious, or cruel manner; (2) previous history of violence; (3) unstable social history; (4) prior sadistic sexual offenses; (5) lengthy history of mental problems; and (6) serious misconduct in prison or jail. (§ 2402, subd. (c).)
The importance of those factors is left to the discretion of the parole panel (§ 2402, subds. (c) & (d)), and judicial review of the Board’s parole decisions is very limited. “[T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board], but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious. It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. As long as the [Board’s] decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court’s review is limited to ascertaining whether there is some evidence in the record that supports the [Board’s] decision.” (Rosenkrantz, supra, 29 Cal.4th at p. 677.)
However, the deferential review accorded the Board’s decision does not mean that courts simply rubber stamp its determination as long as there is some evidence to support any of the unsuitability factors; the “standard is unquestionably deferential, but certainly is not toothless.” (Lawrence, supra, 44 Cal.4th at p. 1210.) Rather, the reference in Rosenkrantz to some evidence to support the Board’s decision to deny parole means its ultimate decision that the inmate poses a current risk of danger to society if released from prison. (Lawrence, supra, 44 Cal.4th at pp. 1210, 1212; see also Lee, supra, 143 Cal.App.4th at p. 1408; In re Tripp (2007) 150 Cal.App.4th 306, 313.)
Accordingly, “to give meaning to the statute’s directive that the Board shall normally set a parole release date ([Pen. Code,] § 3041, subd. (a)), a reviewing court’s inquiry must extend beyond searching the record for some evidence that the commitment offense was particularly egregious and for a mere acknowledgement by the Board or the Governor that evidence favoring suitability exists. Instead, under the statute and the governing regulations, the circumstances of the commitment offense (or any of the other factors related to unsuitability) establish unsuitability if, and only if, those circumstances are probative to the determination that a prisoner remains a danger to the public. It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public.” (Lawrence, supra, 44 Cal.4th at p. 1212, original italics.)
There must be something “more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision--the determination of current dangerousness. ‘It is well established that a policy of rejecting parole solely upon the basis of the type of offense, without individualized treatment and due consideration, deprives an inmate of due process of law.’ [Citation.]” (Lawrence, supra, 44 Cal.4th at p. 1210.)
With respect to the aggravated circumstances of the commitment offense, “the statutory and regulatory mandate to normally grant parole to life prisoners who have committed murder means that, particularly after these prisoners have served their suggested base terms, the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness.” (Lawrence, supra, 44 Cal.4th at p. 1211.) In other words, “the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner’s pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.” (Id. at p. 1214, original italics.)
Thus, “the determination whether an inmate poses a current danger is not dependent upon whether his or her commitment offense is more or less egregious than other, similar crimes. [Citation.] Nor is it dependent solely upon whether the circumstances of the offense exhibit viciousness above the minimum elements required for conviction of that offense. Rather, the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude. [Citations.]” (Lawrence, supra, 44 Cal.4th at p. 1221.)
In sum, the Board “may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate’s criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. [Citation.] Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmate’s crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor.” (Lawrence, supra, 44 Cal.4th at p. 1221, original italics.)


TO BE CONTINUED AS PART II….

Publication Courtesy of San Diego County Legal Resource Directory.
Analysis and review provided by San Diego County Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com

---